The epidemic of addiction, death and crime that is the opioid crisis has spawned massive litigation against the pharmaceutical industry in recent years. In February, four companies agreed to pay around $26 billion to settle lawsuits alleging that their practices helped fuel the crisis. On the other hand, late last year, industry defendants won a high-profile trial, defeating claims brought by the State of California asserting that they created a public nuisance through their marketing efforts. The court ruled that California failed to offer any evidence that “the allegedly false or misleading marketing by Defendants caused the writing of medically inappropriate prescriptions.”
Along the way, there have been a few eyebrow-raising moments in these cases. A good deal of the opioid litigation has targeted Purdue Pharma, which produced and sold OxyContin. In 2019, the Connecticut Attorney General filed a complaint revealing previously undisclosed, shocking emails that purport to be from Purdue’s former director Richard Sackler. In the emails, Sackler appears to state that opioid “[a]busers aren’t victims; they are the victimizers,” and to seemingly agree with an acquaintance’s statement that “if people die because they abuse it then good riddance.” And in the massive opioid “MDL”– whereby the federal court system concentrates multiple, dispersed cases presenting common issues before the same judge– a trial revealed an email among defendant AmerisourceBergen executives mocking opioid addiction sufferers in rural areas as “pillbillies” and referring to OxyContin as “hillbilly heroin.”
In opioid litigation pending in Tennessee, the Court of Appeals removed the judge from the case– a particularly rare event in litigation– based on comments he made on Facebook and in a media interview. Specifically, on his Facebook account, when one commenter asked, “You’re not trying to ban drunken bridesmaids on peddle carts,” the trial judge responded, “[N]ope. Opioids.” The commenter then stated, “I don’t know if you’re going to get the help or platform you need from those with power/deep pockets. Many of Tennessee’s powerful have ties to pharmaceuticals,” and the trial judge specifically “liked” this comment.
In the media interview, the judge stated his belief that certain defendants were guilty of “the worst case of document hiding that I’ve ever seen. It was like a plot out of a John Grisham movie, except that it was even worse than what he could dream up.” Earlier, the judge said during a hearing that he would hold the defendants in default– i.e., as deemed to have automatically lost the lawsuit– because of the document misconduct, and that their former attorneys “might be going to jail with or without their toothbrush” … “if they had … show[n] up” at the hearing. Definitely not what you see every day in litigation.
Last week, trial began in a lawsuit by San Francisco against retail giant Walgreens and others, accusing the defendants of making false statements about the safety of opioids in order to expand their market. And yes, it got hot. Counsel for one of the defendants accused SF of making “a cynical effort to exploit a crisis” and asserted that “the claims in this case are a frontal assault on the way medications are developed, approved, distributed, prescribed and dispensed in the United States.” We will see.